Discovery of Public Records in Capital Cases
by Judge O.H. Eaton, Jr.
The lawyers who represent death row inmates in postconviction matters are referred to as "collateral counsel." These lawyers practice in one of the most stressful areas of the law. They are charged with reinvestigating the case to find out deficiencies that occurred during the trial. This reinvestigation usually includes review of numerous public records that may have some bearing on the case.
The procedure governing postconviction litigation in capital cases is contained in Fla. R. Crim. P. 3.851. The procedure to obtain public records for use in postconviction litigation is contained in Rule 3.852. The Supreme Court of Florida published its most recent versions of Rules 3.851 and 3.852 on September 26, 2001. Amendments to Florida Rules of Criminal Procedure 3.851, 3.852, and 3.993 and Florida Rule of Judicial Administration 2.050 , 802 So. 2d 298 (Fla. 2001). The changes became effective on October 1, 2001, but do not apply to motions pending before that date. This publication is the latest in a series of rules changes governing postconviction procedure in capital cases.
Over the last several years both the Supreme Court and the legislature have made efforts to streamline the processing of postconviction motions in capital cases. These efforts have met with mixed results. For instance, the legislature passed the Death Penalty Reform Act of 2000 (DPRA) and the Supreme Court declared it unconstitutional at its first opportunity.1 However, the legislature has provided substantive law and, more importantly, resources to allow postconviction litigation in capital cases to proceed more rapidly.
Every death row inmate in Florida has a lawyer. That statement alone is a positive comment on legislative commitment. There are three publicly funded offices of Capital Collateral Regional Counsel representing the vast majority of death row inmates. Also, there is a registry of attorneys available for appointment at public expense if Capital Collateral Regional Counsel are unable to undertake representation of a particular defendant.
Additionally, there is a legislatively created Capital Commission composed of judges and legislators that is tasked to monitor capital cases and make recommendations to the legislature on a periodic basis.2 This commission also maintains the registry of qualified attorneys available to be appointed to represent a death row inmate if the Capital Collateral Regional Counsel cannot represent the inmate.
Collateral counsel is appointed for a death row inmate by the Supreme Court of Florida upon the issuance of the mandate affirming the judgment and sentence of death on direct appeal.3
Prior to 1996, collateral counsel had to file a civil action in order to obtain public records from persons or agencies other than the state attorney and local law enforcement agencies that investigated the crime.4 This cumbersome process often required suit to be filed in several jurisdictions and delays were inevitable. The Florida Legislature enacted DPRA to streamline processing of capital cases and included a provision for the discovery of public records in the act.5
The procedural aspects of the statute were held to be unconstitutional in Allen v. Butterworth, 756 So. 2d 52 (Fla. 2000). In Allen, the court stated:
Next, we feel it is important to specifically address §3 of the
DPRA, which substantially amends §119.19. Although this Court has
recognized that the Legislature "has the prerogative to place reasonable
restrictions" on the right of public records access, Henderson ,
745 So. 2d at 326, this Court has also noted that Rule 3.852 is "a
discovery rule for public records production ancillary to proceedings
pursuant to Rule 3.850 and 3.851." Amendments to Florida Rules of
Criminal Procedure 3.852 , 754 So. 2d 640, 642 (Fla. 1999). Hence, the
Legislature has the authority to define the substantive right to public
records, but the adoption of time limitations and procedures governing
the production of public records in capital cases is within the exclusive
province of this Court. With the exception of §119.19(9) (directing
the Secretary of State to provide the personnel, supplies, and any necessary
equipment to copy records held at the records repository), which is consistent
with our proposed rules, we find that §3 of the DPRA is unconstitutional,
as this section attempts to regulate the procedure for public records
production in capital cases.
The legislature created a centralized repository for storage of public records in capital cases in order to provide easy access to them. It was the legislature's hope that a process could be developed that would allow these records to be automatically sent to the repository and made accessible to counsel without the necessity of resorting to litigation.
Currently, the Secretary of State is the officer responsible for storing the records and the records repository is located in the R.A. Gray building in Tallahassee.
The location of the repository has met with general criticism because the vast majority of capital cases are filed at the opposite end of the state and air travel to Tallahassee has never been optimal. Collateral counsel may prefer to go to the local agency that maintains the records and review them there. However, the statute governing the appointment of collateral counsel restricts counsel from requesting public records except from the records repository. F.S. §27.708(3) provides as follows: "(3) Except as provided in §119.19, the capital collateral regional counsel or contracted private counsel shall not make any public records request on behalf of his or her client."
This statute is arguably unconstitutional because it violates the equal protection clause by prohibiting collateral counsel from obtaining public records by other means available to the public. Sims v. State, 753 So. 2d 66, 71 (Anstead, J., concurring). It also attempts to restrict the practice of law.
Those problems aside, the procedural aspects of discovery of public records are now regulated by the Supreme Court of Florida. Rule 3.582 provides for an orderly method to obtain public records and, if the various offices and agencies that maintain public records cooperate, collateral counsel should be able to review them and have copies made in a timely fashion.
The remainder of this article explains the operation of Rule 3.852 and provides some direction for capital postconviction counsel by reviewing the few cases that address the subject.
(1) "Public records" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.
(2) "Trial Court" means (A) the judge who imposed the sentence of death; or (B) the judge assigned by the Chief Judge.
(3) "Records repository" means the location designated by the Secretary of State pursuant to §119.19(2), Florida Statutes (Supp. 1998), for archiving capital postconviction records.
(4) "Collateral Counsel" means a capital collateral regional counsel from one of the three regions in Florida; or a private attorney who has been hired by the capital defendant or who has agreed to work pro bono for a capital defendant for postconviction litigation.
(5) "Agency" and "person" mean an entity or individual as defined in §119.011(2), Florida Statutes (1997), that is subject to the requirements of producing public records for inspection under §119.07(1)(a), Florida Statutes (1997). 119.011(2) "Agency" means any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.
(6) "Index" means a list of the public records included in each container of public records sent to the records repository.
Steps to Obtain Public Records in Capital Cases
o Step 1
This seemingly simple procedure provides the two main executive branch agencies in the case with notice that public records are to be identified and collected. It also provides notice to the defendant's trial counsel. However, it provides no alternative in the event that trial counsel is no longer practicing law, is dead, or has moved to another state. This oversight may cause problems due to the length of time appeals in capital cases remain pending prior to the issuance of the mandate.
The notice directs the state attorney and the Department of Corrections to submit public records to the records repository within 90 days. The state attorney is also required to provide notice to all law enforcement agencies involved in the investigation of the case to submit public records to the records repository within 90 days.
o Step 2
Additionally, within the same 90-day period, the defendant's trial counsel is responsible for providing written notification to the attorney general of the name and address of any person or agency with information pertinent to the case which has not been previously provided to collateral counsel.
This latter provision has the potential to cause confusion and delay. It gives trial counsel the option of either advising the attorney general of the names and addresses of any additional person or agencies having public records, or not advising the attorney general of such persons or agencies by previously notifying collateral counsel of their existence. This could result in public records not being sent to the records repository for inspection by the state attorney. While it is unlikely that some person or agency foreign to the case will possess valuable material, in capital litigation there is always the possibility.
o Step 3
o Step 4
o Step 5
For obvious reasons, the certificate "to the best of the person or agency's knowledge and belief" is ineffective and will not be relied upon by collateral counsel. The reason for this ambiguous certificate was concern that large agencies like the Florida Department of Law Enforcement may unintentionally miss some public records and should not be held to an exact standard to produce them. However, the certificate is misleading and should be omitted from the rule. The arrival of a box of public records at the records repository or a statement that there are no such records provides the same assurance as the certificate.
Additional Public Records
The trial court may overrule any objection to the production of additional public records if the court finds 1) collateral counsel has made a timely and diligent search, 2) collateral counsel's written demand identifies, with specificity, those additional public records that are not in the records repository, 3) the additional public records are relevant or appear reasonably calculated to lead to discovery of admissible evidence, and 4) the additional public records request is not overly broad or unduly burdensome.
The filing of a demand for additional public records under this section of the rule appears to be mandatory since it uses the word "shall." Collateral counsel will undoubtedly file a "shell" demand for additional public records and move to amend at a later date. This will cause additional delay.
Assuming every person and agency complies with the requirement to submit public records to the records repository, all of the public records should be on file there less than 330 days from the date the mandate affirming the death sentence is issued by the Supreme Court of Florida. However, in capital litigation, things are never that easy. Some of the records may be claimed to be exempt or confidential and there may be old cases out there that are subject to a separate procedure. Ironically, the persons or agencies claiming records to be exempt or confidential are aligned with the prosecution whose interest is to avoid delays. By providing a separate procedure for old cases, additional delays may be expected.
Exempt or Confidential Public Records
In order for collateral counsel to obtain a ruling to unseal the public records claimed to be exempt or confidential, an order must first be obtained from the trial court directing the records repository to ship the sealed boxes of records to the clerk of the trial court. Undoubtedly, collateral counsel will always want to obtain a ruling to determine if these records are really exempt or confidential and delay could be avoided if these records were filed with the clerk of the court in the first place. However, the Supreme Court wanted to carry out legislative intent where possible so this unnecessary complication is part of the procedure and will undoubtedly cause delay.
The "moving party" is responsible to pay for the cost of the "transportation and inspection of such records by the trial court." Presumably, the "cost" will be just the postage. It is unclear what "cost" could possibly be associated with inspecting the records.
Once the records claimed to be exempt or confidential are delivered to the clerk of the court, they may only be opened by the trial court in camera without ex parte communication in the same manner as inspecting any sealed document. Presumably, the trial court will enter an order sustaining the claim of exemption or confidentiality or order the records disclosed.
Procedure to be Used in Old Cases
In old cases where no public records request was made before October 1, 1998, the attorney general and the state attorney should have filed notifications in accordance with the other provisions of the rule by December 30, 1998. Public records should have then been delivered to the records repository as in any other case.
In old cases where collateral counsel has initiated the public records process before October 1, 1998, a demand for additional public records must be filed with the trial court and served upon any person or agency designated in the demand. This demand must have been filed and served within 90 days after October 1, 1998, or within 90 days after the production of records which were requested prior to October 1, 1998, whichever was later. The persons or agencies designated in the demand must copy, index, and deliver any public records to the records repository within 90 days.
A separate procedure is provided in old cases when a death warrant is issued. Collateral counsel is required to request in writing the production of any public records from any person or agency from which public records have been previously requested. The person or agency must copy, index, and deliver to the records repository within 10 days any public record 1) that was not previously the subject of an objection, 2) that was received or produced since the previous request, or 3) that was, for any reason, not previously produced.
Alternatively, the person or agency may file an affidavit with the trial court stating that no other public records exist and that all public records have been previously produced. Interestingly, this section of the rule omits the "best of knowledge and belief" provision contained in other sections of the rule.
The trial court has the authority to reduce the time for production of these records from 10 days to another time.
This section of the rule specifically requires production of public records from persons or agencies that have previously been the subject of a public records demand. The Supreme Court recognized that fact in Sims.
Where written notification is required in old cases, the receiving party is required to provide proof of receipt by return mail or other carrier. This provision may cause delay in receipt of important documents while under the pressure of a death warrant. It provides for no alternative delivery such as electronic transfer.
Scope of Production and Resolution of Production Issues
Destruction of Records Repository Records
Case Law Update
Sufficiency of Public Records Request
The court in Thompson also discusses the history of discovery of public records under chapter 119 prior to Rule 3.852 and gives citations to cases involving the civil actions that were used prior to the enactment of the rule.
Limitations After Death Warrant Is Issued
The court then noted that Rule 3.852(h) restricts discovery of public records after a death warrant is signed to persons or agencies that have previously produced public records. The records that are the subject of discovery are limited to records 1) not previously the subject of an objection, 2) that were received or produced since the previous request, or 3) that were, for any reason, not previously produced.
Interlocutory Review of Discovery Orders
In Camera Inspection of Exempt Public Records
The trial judge must inspect the records in camera to determine if they are in fact exempt. A detailed order must be entered identifying each public record and the reason for its exemption.
In Rose v. State , 774 So. 2d 629 (Fla. 2000), the trial judge held an in camera inspection of public records claimed to be exempt before the Huff hearing. The state attorney was ordered to produce certain of the records and others were ruled to be exempt. The Supreme Court approved the procedure.
It should be noted that in Rose , the trial judge denied the pending motion for postconviction relief without an evidentiary hearing after the Huff hearing was completed. This is risky and may result in years of delay. However, it is proper to deny an evidentiary hearing when there is no basis for one.
The present procedure is designed to speed up public records production by providing a central records repository with a more or less automatic process to send public records to that location. Trial judges are responsible to rule on discovery issues including in camera inspection of records that are claimed exempt.
Collateral counsel is expected to "focus on some legitimate area of inquiry" if motions to compel production are filed or if additional public records are sought.
Public records requests are limited after a death warrant is issued to
records that were not the subject of a previous objection and which have
not been produced in the past. Rule 3.852(h). In other words, records
recently discovered by a person or agency, records generated since the
last request, or records otherwise not previously produced. Additionally,
collateral counsel is limited to requesting public records under 3.852(h)
from persons or agencies that were previously the subject of a public
Public records have provided collateral counsel with significant evidence in the past and will undoubtedly continue to do so in the future. Trial judges need to take their responsibility to rule on public records issues seriously and make every effort to resolve public records disputes in a timely manner.
O.H. Eaton, Jr., is a circuit judge in the 18th Judicial Circuit. He
graduated from the University of Florida College of Law in 1968 and was
elected to the circuit bench in 1986. He is past chair of The Florida
Bar Criminal Procedure Rules Committee and is a member of the Supreme
Court Committee on Postconviction Relief in Capital Cases (the Morris
Committee). He is one of the instructors who teaches the course on handling
capital cases at The Florida College of Advanced Judicial Studies and
The National Judicial College at the University of Nevada, Reno.